There is no Federal law that clearly prohibits an employer from asking about arrest and conviction records. However, using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups and thus cannot be used in this way.  The EEOC states that nationally, Blacks and Hispanics are convicted in numbers which are disproportionate to Whites and that barring people from employment based on their conviction records will therefore disproportionately exclude those groups. Due to this adverse impact, an employer may not base an employment decision on the conviction record of an applicant or an employee absent business necessity. Business necessity can be established where the employee or applicant is engaged in conduct which is particularly egregious or related to the position in question.

Since an arrest alone does not necessarily mean that an applicant has committed a crime the employer should not assume that the applicant committed the offense. Instead, the employer should allow him or her the opportunity to explain the circumstances of the arrest(s) and should make a reasonable effort to determine whether the explanation is reliable.

Even if the employer believes that the applicant did engage in the conduct for which he or she was arrested that information should prevent him or her from employment only to the extent that it is evident that the applicant cannot be trusted to perform the duties of the position when

  • considering the nature of the job,
  • the nature and seriousness of the offense,
  • and the length of time since it occurred.

This is also true for a conviction.

If an employer chooses to collect arrest or conviction information, it must do so consistently. Obtaining criminal records in an inconsistent manner, based on the race, color, religion, national origin, or sex of the applicant, is unlawful under Title VII. For example, it would be unlawful for an employer to only require background investigations of applicants who were born in the Middle East or are Muslims.

While Texas does not have any laws directly preventing the inquiry about or use of arrests or convictions by private employers in employment decisions (there are some restrictions on governmental use of these histories), several other states do have laws restricting and regulating employers use of this information.  Of course, the Texas discrimination laws could possibly prevent Texas private employers from utilizing criminal histories to discriminate based on a recognized protected category as discussed above.

If you believe that you have been prevented from being hired because of the use of arrest records or convictions and you are a member of a minority, you may want to consider contacting an attorney or the EEOC regarding this issue.